UC Irvine Journal of International, Transnational, and Comparative Law

This article analyses widespread constitution-shaping activities by a range of international organizations at different places on the globe. The principles governing the processes and substance of constitution-making—as propagated by the international organisations—have remained similar since 1989: rule of law (or its elements and emanations), human rights, and democracy (or variants and family members such as inclusion, openness, participation, and the like), the so-called constitutionalist trinity. The modalities of constitution-shaping are pre-accession-incentives, conditionalities, indicators, and benchmarking.

The article raises a dual question: First, do we see, in the current era of anti-globalisation, populism, and charges of ostensible obsoleteness of liberalism, a change in the law and practice of the organizations? Have the international organizations in fact given up on the constitutionalist trinity and have they stopped offering assistance? My answer is that this does not (yet) seem to be the case. In other words, despite critique and pushbacks, the language and practice have not changed until the present day.

Second and normatively speaking, is the international organizations’ continued insistence on the constitutionalist trinity a good thing? Should not the traditional constitutional principles be substituted by new ones? Or, alternatively, should not the international organizations abstain from getting involved in the first place? The article examines the effectiveness, the lawfulness, and the legitimacy of international involvement. It concludes that the constitution-shaping activity by international organizations needs to pay much more attention to the implementation of constitutional law and its translation into more specific laws, regulations, and practices in the administration on the ground to be effective. It needs be wary of crossing the threshold to unlawful intervention to remain lawful. And it must absorb post-colonial concerns and needs to pursue a much deeper social agenda with a global ambition, to regain legitimacy. Thus revamped, international organisations’ constitution-shaping role could be re-invigorated. It would thus form one building block of transnational or global constitutionalism and contribute to transnational ordering.